State Consumer Disputes Redressal Commission
Mool Chand vs Mool Chand Kharaiti Ram Hospital on 6 October, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 06-10-2006 Complaint Case No. C-230/2000 Shri Mool Chand, Complainant S/o Shri Milap Chand, Through R/o Sadho Ka Mohalla, Mr. R.K. Jha, Pataudi, Distt. Gurgaon, Advocate. Haryana. Versus 1. Mool Chand Kharaiti Ram Hospital Opposite Party No.1 And Ayurvedi Research Institute, Through Lajpat Nagar III, Mr. B. Mahapatra, New Delhi. Advocate. 2. Dr. Arun Goel, Opposite Party No.2 C/o Mool Chand Kharaiti Ram Hospital, Through Lanpat Nagar III, Mr. B. Mahapatra, New Delhi. Advocate. 3. Dr. N.G. Abbott, Opposite Party No. 3 C/o Mool Chand Kharati Ram Hospital Through Lajpat Nagar III, Mr. B. Mahapatra, New Delhi. Advocate. 4. The New India Assurance Co. Ltd. Opposite party No.4 A-74, Main Road, Kanti Nagar, Through Delhi-110052. Mr. R. Narayanan, Advocate. 5. M/s United India Insurance Co. Ltd. Opposite party No.5 No.1, 606-608, Devika Tower, Nehru Place, New Delhi. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Complainant has sought compensation of Rs. 12 lacs on account of medical negligence on the part of the OPs as despite two operations conducted by the OPs for the treatment of his right leg failed and rendered him permanently disabled.
2. The case of the complainant in brief is that on 13-04-1995 the complainant met with an accident and he was initially treated in Pushpanjali Hospital and Govt. Hospital and thereafter was admitted with OP No.1 hospital on 24-04-1995 for the treatment of his right leg and remained admitted in the hospital from 24-04-1995 to 02-05-1995. During the said period he remained under the treatment of OP No.2-Dr. Arun Goel, and was got X-rayed and underwent various examinations and tests. Thereafter he was operated upon by OP No.2 and a nail was inserted in the thigh. After operation he was advised to rest for six months. When he was discharged by OP No. 1 and 2 they raised a bill during the period of treatment and thereafter for a sum of rs. 6,211.82p.
3. That the nail which was inserted in the thigh was broken as the said nail was not upto the standard and as such he again approached OP No. 1 in the year 1998.
Again X-ray was got done and other examinations were done and the OP charged a sum of Rs. 44,680.92p during the period 13-01-1998 to 28-03-1998. He became jobless and besides incurring the amount towards the ailment, he used to spend money on the diet, medicines and for the check-up for which no receipt was issued.
4. That the second operation was done by OP No.2 and the nail was again inserted in the second operation. As is apparent from the X-ray report the said nail had also broken. He again approached the OP No.2 who examined him and was informed that a sum of Rs. 25,000/- to Rs. 30,000/- was required for the purpose of treatment.
5. That he had suffered mental agony and sufferings because of the negligence on the part of the OPs and therefore the OPs are liable to pay the compensation to him.
6. While absolving themselves from the charge of medical negligence in conducting the operation, fixing of nail in the leg of the complainant OP No. 1 to 3 by way of joint reply have stated that the nail does not join the bone and is not a cure in itself. The process of rejoining of the fractured bone takes place naturally. The nail does not itself cure and make bones rejoin. The nail merely brings the broken bones together and helps in calcification to take place so that bones can rejoin. The calcification is a natural process over which the doctors have no control. Normally, it takes place within a period of six to eight months, but there can also be unusual long delay in some cases. There can also be cases, where calcification or reunion may not take place, due to several causes and reasons. These are beyond the control of the doctors. The nail in the thigh, is not meant to take the weight of the patient/individual. The nail facilitates the bones to come together and increases chances of good and early calcification. The nail can crack or bend, in case the patient puts weight on the leg, more so when the fracture has not fully healed. Further, there can also be cases of non-union of bones and these cases are well documented in medical literature.
7. According to them the complainant has himself been negligent and he did not follow the medical advice. He was required to take rest, follow the medical advice that he should not move, put weight on t he fractured limb and take precautions. He did not even report back for follow up. He started putting weight on the leg within few months of the first operation, despite the medical advice to the contrary.
8. Further that the complainant had a fracture in April, 1994 and reported to OP No.2 only in April, 1995. This itself shows that he had predisposition to non-union. As per record of the OP Hospital, the complainant had sustained fracture of shaft femur bone in the right leg. He has not filed the medical prescriptions and the details of treatment given by the various hospitals.
9. According to the OPs necessary investigations were done before the operation. The operation was properly performed and the complainant was fully satisfied. The nail was inserted to correctly align the broken bone and facilitate calcification. The nail as already stated above does not rejoin the bones itself. It only helps in calcification. The calcification is a natural process over which doctors have no control. The patient after the operation must take adequate care and precaution for at least six months or till the bones rejoin, whichever is later. The nails do not break unless the patient is negligent. According to OP when complainant came to hospital for the second time in 1998, he admitted to the doctors that he started putting weight on the leg within a few months. He was operated in 1995 and nail was fixed. It is apparent that even after three years the fracture did not heal and the bones did not rejoin. The doctors cannot be blamed for the same.
10. As is apparent from the aforesaid facts the factual matrix of the case are more or less not in dispute to the effect that the complainant met with an accident on 13-04-1995 and was initially treated in Pushpanjali Hospital and Government Hospital and it was on 24-04-1995 that he came to the OP hospital for treatment. There is also no dispute that the nail inserted in the thigh at the time of first operation was got broken in the year 1998 i.e. after three years. Another nail was inserted in the year 1998. That was also broken. When he came to OPs for the third time they informed him that he would have to incur further expenses of Rs. 25,000/-. For the second operation he paid Rs. 44,680.92p and for the first operation he paid Rs. 6,211.82p.
11. Now the question arises whether there was any negligence in fixing the nail at the first operation and in the second operation because the OPs have taken the plea that the nail does not join the bones and is not a cure in itself as the process of joining of the fractured bone takes place naturally. Further that the calcification is a natural process over which the doctors have no control and it takes place within a period of six to eight months but if the patient puts weight on the leg there is every possibility of cracking or breaking of the nail particularly when the fracture has not fully healed.
12. In support of the process of natural calcification of the bone the OPs have relied upon medical literature on the subject in question i.e. Open Intramedullary Nailing of the Femur Orthopedic Clinics of North America-Vol. II.No.3 July, 1980 (Annexure A). In this regard the opinion is of Joseph Schatzker, M.D., B.Sc. (Med.), F.R.C.S. (C).
13. It is common knowledge that the intramedullary nail has become a favorite device for the stabilization of femoral shaft fractures. The opinion of Dr. Joseph is noteworthy and is as under:-
As such if used properly, it allows rapid rehabilitation of the patient and much earlier weight bearing than any other method of internal fixation.
The proper application of the technique requires careful preoperative planning with proper patient selection, meticulous attention to operative detail, and proper postoperative care. Failures of this technique or its complications can be far greater in magnitude than those with any other methods of internal fixation. Thus this procedure should not be embarked upon casually.
14. Another significant observation made by Dr. Joseph in this regard is as under:-
An intramedullary nail is an intramedullary splint. It renders the bone sufficiently stable to permit early resumption of function, but the stability is never absolute and the bone union most commonly seen is through the formation of callus. The intramedullary nail stablizes the bone by virtue of an interference fit of a straight nail driven into an undulating reamed medullary canal with highs and lows. The more extensive the reaming of the insthmus, the broader the contact area between the nail and the surrounding bone, the greater the frictional resistance.
15. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner.
In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
16. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
17. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p.
586 holds good in its applicability in India.
18. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
19. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
20. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
21. Medical literature referred above specifically provides that the proper application of the technique/device for the stabilization by way of intramedullary nail requires careful pre-operative planning with proper patients selection, meticulous attention to operative detail and proper post-operative care. This is such a technique the failure of which has various complications. Such complications can be far greater in magnitude than those with any other methods of internal fixation whenever intramedullary technique is adopted by any medical professional embarking it upon casually.
He has to equip himself fully with proper patient selection and minutest attention to the operative details. So much so this technique also requires utmost post operative care
22. OPs have tried to shift the blame of the failure of the first operation necessitating the second operation and again breaking of the nail in the first and second operation to the negligence of the complainant as according to them he did not follow up the medical advice. For instance he was required to take rest but he did not take rest. So much so he put weight on the fractured leg and did not take precaution. He even did not report back for follow up.
23. Let us assume that the complainant had done what the OPs have alleged. But there is nothing on record to show that the OPs had taken the requisite pre-operative planning and proper patient selection. There is no medical literature on the point that even if what the complainant is alleged to have done the complications can be of the nature that the nail would break or bend. Only inference is that neither was care taken to the age of the complainant nor were the minutest meticulous attention was given to the operative details nor was the post operative care details.
24. Whenever a medical professional chooses a device out of several options which is more advantageous and then he has to follow the requirements of that device meticulously and he has also to keep in mind that the treatment should be given in a manner that can be monitored by him and that medical professional should keep every possible eventuality of a patient not meticulously adhering to his advice over which he has no control or day to day monitoring.
25. For instance in the instant case the complainant is alleged to have started putting weight on the fractured leg or leg in which nail was put and as a result the nail was either broken or bent. The second operation suffered the same result. It is the consequence of the treatment given by a medical professional adopting such types of de vices or line of treatment that requires utmost and meticulous pre-operative and post-operative care that raises inference whether these cares were taken or not or whether the procedure was embarked upon in casual manner.
26. It was for the OPs to know first as to what was condition of the bones, as to what was the age of the patient and also the minutest meticulous operative details. Operating Doctor should always keep mind that the device intramedullary nail to the femur is such a device or treatment that if there is a little casualness or carelessness in patient selection or attention to the operative details and in proper post-operative care over which medical professional has no monitoring or control the complications are far greater in magnitude than those with any other methods of internal fixation.
27. While testing the allegations and the conditions of the complainant having suffered two operations in the fractured leg by putting nails that were either broken or bent and still rendering the complainant permanently disabled on the anvil of the criteria meant for ascertaining medical negligence, we find no escape that proper care was not taken nor proper quality of nail was used by the OPs which was highly substandard as within a duration of five years two intrammedullary nails gave way neither was meticulous attention given to the operative details or was any attention given in the post-operative details.
28. The preliminary objection that the complaint is barred by limitation is highly frivolous and should not be taken in such cases. In case of medical negligence where the complainant suffers permanently disability the cause of action is of subsisting nature. In the instant case the second operation was done in 1998 and when the complainant went for third time after few months he was asked to shell out Rs. 25,000/- to Rs. 30,000/- more.
29. Having regard to the facts and circumstances of the case and the nature of medical negligence on the part of the OPs which is writ large on the face of it, we hold OP No.1 and OP No.2 guilty for deficiency in service. They are liable jointly and severally. We deem that lump sum compensation of Rs. 2 lacs including cost of litigation shall meet the ends of justice. Payment shall be made within two months.
30. Complaint is allowed and disposed of in aforesaid terms.
31. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
32. Announced on 6th October, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj